Living in Florida as a permanent resident is the lifetime dream of many individuals across the United States. When compared to other states, the Sunshine State offers the strongest homestead protection laws.
Is it possible for a beneficiary of homestead exemption to waive his or her rights in Florida? Read on to find out.
Florida Homestead Exemption – The Basics
The term “homestead” refers to one’s primary residence. Florida residents are entitled to a high level of protection against creditors’ claims through the state’s homestead exemption.
As provided by the Florida Constitution (Article X, Section 4), a resident’s homestead “shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for:
- The payment of taxes and assessments thereon,
- Obligations contracted for the purchase, improvement, or repair thereof, or
- Obligations contracted for house, field or other labor performed on the realty”
In the same article, Section 4 (b) expressly states that “these exemptions shall inure to the surviving spouse or heirs of the owner.”
Section 4 (c) adds that “the homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child.”
If the homestead owner is married, the spouse’s consent is required to mortgage, sell, or gift the property. At the same time, Florida homestead laws protect inheritance rights and grant superior asset protection with strictly limited exceptions.
Can You Waive Homestead Rights in Florida? – Taking a Closer Look
Florida law allows residents to waive homestead rights as long as they meet the statutory requirements to do so. Before 2018, the only legal alternative to waiving one’s spousal rights on a homestead property was based on Florida Statutes 737.702.
Under Florida Statutes 732.702 (1), the rights of a surviving spouse to a homestead property “may be waived, wholly or partly, before or after marriage, by a written contract, agreement, or waiver, signed by the waiving party in the presence of two subscribing witnesses.”
With the help of an attorney, the spouse would draft a contract to waive his or her spousal rights to the homestead.
Since 2018, Florida residents have had another legal option to waive homestead rights. The Florida Legislative approved Senate Bill 512, which came into effect on 1st July of the same year. Currently, a spouse can waive his or her homestead rights using a deed.
Florida Statutes 732.7025 (1) provides that “a spouse waives his or her rights as a surviving spouse with respect to the devise restrictions under s. 4(c), Art. X of the State Constitution if the following or substantially similar language is included in a deed:
- “By executing or joining this deed, I intend to waive homestead rights that would otherwise prevent my spouse from devising the homestead property described in this deed to someone other than me”
As specified by Florida Statutes 732.7025 (2), the waiver language used in the deed is not a waiver of the protection against creditors’ claims while the owner is still alive or post-death.
After a spouse waives his or her homestead rights in Florida, the owner of the property can mortgage, sell, gift, or deed the asset to another person without the spouse’s consent.